Is it Legal for Kids to Have Sex When They are Home Alone?

Serious question. In light of the ongoing fracas regarding kids exploring the world without supervision, it occurred to me – with a wide range of ages when kids are deemed capable of being home alone that tops out at 14 in Illinois – are there states where the legislature has determined that kids can consent to sexual activity at a younger age than my former home state thinks kids can spend a few hours solo in their own home?

The answer, really, is “it depends, but probably”.

Let’s look first at the home alone situation. A full table of state-by-state laws can be found here, so I’ll break it down by age/status:

So, basically, the vast majority of states think that parents can make their own determination, and/or that by the time kids are in late elementary or middle school, on average they are capable of being on their own for a few hours. This is certainly consistent with what I recall as a child and what I’ve seen with my own. I’m not sure I’d leave most children solo at age 6, Kansas, but I would certainly let my son play outside with the neighborhood kids or walk a block or so to a friend’s house at that age. I keenly remember the bittersweet moment of watching my first grader walk away from me, knowing that he was growing up so fast and didn’t need me in the same ways anymore.

But I digress. Let’s look at the age of consent for a bit. These laws are a bit more complex, because a lot of states don’t just say, “Hey, you’re 16, so you can have sex.” Instead, the age of consent depends on the comparative age of the individuals in the context of criminal statutory rape statutes. So with that in mind, let’s take a look.[1]

First off, there’s federal law which essentially puts the age of consent at 12, unless the age difference is more than 4 years. So, “in the special maritime and territorial jurisdiction of the United States” a 12 and 13-year-old can technically have sex, when they cannot even legally be home alone in Illinois. (18 U.S.C. § 2243)

So, what about the individual states? There is a fabulous, comprehensive and complex table here. If you look just at the age of consent, it looks like in every state, an individual has to be between 16 and 18 years old to consent to sex. But it’s more complicated than that. What the minimum age really means in the majority of states is an age in which a person can consent to have sex with anyone, regardless of the age of their partner. But most states look more like the federal law – 16-18 year olds can have sex with anyone, but kids as young as 12 can legally have sex, depending on the age of their partner. So, again, yes – there are kids who are legally having sex in, say, Alabama, who cannot legally be a latch key kid in Illinois.

So there it is – there are at least 8 states that appear to think that minors can consent to sexual activity at a younger age than Illinois thinks they can be home alone safely. From which we can successfully conclude, the US is weird.

[1] Age of consent and statutory rape can be controversial subjects – the point of this piece is not to argue one way another over the appropriateness of setting a legal age at which kids can legally have sex, or whether statutory rape laws are good or bad. For that matter, I’m not looking at the appropriateness of home alone laws, either. I’m just struck by the discrepancies, based purely on jurisdiction.

Emily Sexton

Writer of incomplete novels, entertainment lawyer, mom of two with a wide age spread, blogger here and elsewhere, wannabe vocalist and v/o actress, atheist, weirdo. That last bit went without saying. Find Em on twitter @emandink and maybe she'll use it more.

There are several states that have explicit marital exceptions to various degrees – some it’s a flat exception, others still have age stipulations along the lines of Romeo and Juliet laws (i.e., legal sex between two 16 year olds doesn’t suddenly become illegal when one partner turns 17) or minimum legal marital ages. I suspect that the disconnect in South Dakota and a few other states is likely a function of different parts of the legal code – with one age of consent resiging in the general criminal code and another in the child protection code.